Lessons From Jose Baez

All right, so I was wrong again.  I figured that the result in the Casey Anthony trial would have resulted in some praise for the prevailing attorney, Jose Baez, even from those quarters that had been highly critical of him.  But it’s barely been a speed bump in all the second guessing and criticism.

But a lot of lawyers should really go to school on this one.  It is rich with subtle decisions and “tactics”, if you want to call them that, which contributed to the result.

I want to deal today with just one aspect of how brilliant Baez was. I’m taking a little license here because I don’t know exactly what he knew, but I am at least educated guessing.

In deciding what to put forward as the competing narrative there were two ways to go.  The “fact” that Baez was going on, presumably from his client, was that she was confronted by her father holding the body of her toddler, who had allegedly, according to the father, drowned in the pool.

How do you know that the child drowned in the pool?  You don’t.  All you know is what your client observed, and what her father stated.

The observation supports an inference that the child accidentally drowned in the pool, to be sure.  But it would also support the far less likely inference that perhaps the father killed the child.  After all, he is there, holding the child’s body.

So, do you put forward a narrative where the child dies accidentally or do you go further and put forward a narrative that the father killed the child?  The information you have could be used either way.

Baez, in a very interesting contrast to what police and prosecutors often do, goes conservative, at least in that sense.  I mean, the whole idea is quite bold, but at least in this way he didn’t go as far as he could have.

Now, this was brilliant jury trial lawyering.  The guy is extremely talented.  This is an example of something like an instinct, something that you probably can’t teach.

It would certainly have been more sensational and made for what would be perceived as a “stronger” defense to accuse the father of actually killing the child.  But the dynamic this sets up is too high a hill to climb for the jury.  It makes them feel as if by acquitting the defendant they are convicting the father.  That is too stark and dramatic a deviation for them to accept, and if you put it that way – convict the defendant or convict her father – they’re more likely to convict the defendant, who after all sits in the dock already accused.

So while you might even suspect that the father killed the toddler and you certainly have at least some reason to believe it, you don’t allege that.  That way, the jury doesn’t have to make such a stark choice.  You’ve raised questions and hinted at an alternate villain, but you don’t go all out at him.  This is in complete harmony with other arguments you’re going to make:  principally, that nobody knows what happened here.

This is the theme that you can keep coming back to, over and over, with every witness, in your opening, in your closing – nobody knows what happened here.  And when everything points to that no matter which way you come at the problem, it’s almost like it leaves the jury little choice but to decide that, yes, nobody knows what happened here, and neither do we.  Not guilty.

Notice, too, how does the prosecution counter this?  They can’t.

One really funny thing is that all the pundits were talking about how “methodical” the prosecution was.  And all the while it was Baez who was being methodical.  He was methodically crafting and building a defense, under the radar, that resonated and harmonized with just about all the evidence, even the evidence presented by his opponents.

Prosecuting is construction:  two by fours, hammers and nails.  Defending is poetry:  rhythm, rhyme, cadence.

Baez just has it.  Can’t find it just now, but I saw him quoted as saying that he is always thinking about the jury.  That’s the way a brilliant trial lawyer is, in my opinion.